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Dr. Ram Saran and anr. Vs. Shrimati Shakuntala Rai W/O Late Principal Om Dutt and ors. - Court Judgment

LegalCrystal Citation
CourtPunjab and Haryana High Court
Decided On
Case NumberFirst Appeal No. 141 of 1959
Reported inAIR1961P& H400
ActsFatal Accidents Act, 1855 - Sections 1A
AppellantDr. Ram Saran and anr.;shrimati Shakuntala Rai W/O Late Principal Om Dutt and ors.
RespondentShrimati Shakuntala Rai W/O Late Principal Om Dutt and ors.;dr. Ram Saran and anr.
Appellant Advocate S.M. Sikri and; A.C. Hoshiarpuri, Advs.
Respondent Advocate F.C. Mittal and; G.P. Jain, Advs.
Cases ReferredMunicipal Corporation Delhi v. Sobhag Wanti
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....dua, j. 1. in this appeal, we are concerned with claim for damages on account of death of shri om dutt deceased alleged to have been caused by rash and negligent driving by dr. devinder kumar, defendant-appellant no. 2, on 23rd april, 1957, at about 11 a. m. at jullundur city.2. the suit out of which the present appeal has arisen was instituted by shrimati shankutala roy, wife of late principal om dutt deceased, bibi anjula minor daughter and pradeep kumar minor son of the deceased om dutt, through their mother shrimati shankuntala roy, against dr. ram saran. father of dr. devinder kumar, owner of car no. pnj 6253, dr. devinder kumar son of dr. ram saran, the first defendant, and the new asiatic insurance company limited, with which company the car was was alleged in the plaint.....

Dua, J.

1. In this appeal, we are concerned with claim for damages on account of death of Shri Om Dutt deceased alleged to have been caused by rash and negligent driving by Dr. Devinder Kumar, defendant-appellant No. 2, on 23rd April, 1957, at about 11 a. m. at Jullundur City.

2. The suit out of which the present appeal has arisen was instituted by Shrimati Shankutala Roy, wife of late Principal Om Dutt deceased, Bibi Anjula minor daughter and Pradeep Kumar minor son of the deceased Om Dutt, through their mother Shrimati Shankuntala Roy, against Dr. Ram Saran. father of Dr. Devinder Kumar, owner of car No. PNJ 6253, Dr. Devinder Kumar son of Dr. Ram Saran, the first defendant, and the New Asiatic Insurance Company Limited, with which Company the car was insured.

It was alleged in the plaint that at about 11 a. m. on 23rd April, 1957. Shri Om Dutt deceased, who was at that time Principal of. the Dayanand Ayurvedic College, Jullundur City, was going onhis bicycle on Grand Truhk Road from the city side towards the Dayanand Ayurvedic College. He was proceeding on his own side of the road and when he reached the junction of the Grand Trunk Road and the kacha path leading to the Mehr Chand Technical Institution, he gave a signal with his right) hand indicating that he was to turn to the right.

After giving the signal, he actually turned to the right, but when he was in the middle of the road, defendant No. 2, Dr. Devider Kumar, came rashly and negligently driving car No. PNJ 6253 from behind at a very high speed and without caring to use the horn collided with the Cycle of the deceased, as a result of which both the cycle and the deceased were thrown on the bonnet of the car and the deceased further thrown on to the roof of the car and finally down on the road.

Defendant No. 2, according to the plaint, did not care to apply brakes in order to control the car in time to avoid the accident. As a result of this rash and negligent act on the part of defendant No. 2, the deceased Om Dutt sustained grievous, serious and extensive injuries due to the said accident, and he died in the Civil Hospital, Jullundur City, at about 3 a. m. on 24th April, 1957, without regaining his consciousness.

3. It is further averred that the speed limit fixed for motor vehicles in the area where the collision took place, was 15 miles per hour. Defendant No. 2, Devinder Kumar, had, it is further pleaded, taken his driving licence on the 6th of February, 1957, presumably suggesting thereby that he was not very much experienced in driving car.

4. The liability of defendant No. 1 was alleged to be in his capacity as owner of the car. Defendant No. 3 was sought to be held liable on the ground that the car had been insured with this company under a comprehensive cover.

5. The deceased was at that time stated to be 42 years old possessing good physique and health and was of temperate habits. According to normal expectation of life, he should have lived up to the age of 70 years. He was drawing a basic salary of Rs. 230/- per mensem in the grade of Rs. 200-15-455 plus dearncss allowance at Punjab Government rates. In addition, he was also being paid Rs, 35/- per month as house rent and Rs. 50/- per month as dearness allowance. His next annual increment was due on 1st February, 1958.

In addition to the monthly subscription of one anna per rupee of his basic salary deducted from his pay, his employers were contributing a similar amount towards his Provident fund and the sum so subscribed and contributed was to carry interest at 3 per cent per annum from the date of monthly subscriptions and Contributions On the total accumulated amount uptodate. The deceased, according to the plaint, was also having Private Practice as a physician, from which he had fair income, in the increase of which there were fair prospects:

Annual income was, however, at that time suggested to be on the average of Rs. 200/- Per month, which was expected to increase after retirement and go up to about Rs. 500/- per month. According to the rules of the D. A. V. College Trust and Management Society for the teaching staff; the age of retirement was fixed at 60 years, but on ac-count of the high qualifications, efficiency and ability, the deceased would probably have been retained in service up to the age of 63 years, as permissible under the rules.

The three plaintiffs being solely dependent on the earnings, care and attention of the deceased were claimed to be entitled to institute the suit, and, indeed, it is stated that the plaintiffs Nos. 2 and 3 used even to be coached by the deceased in their studies. On these grounds, decree for a sum of rupees one lakh was claimed, though, as Per annexures attached with the plaint, the total loss sustained by the plaintiffs was for a much higher amount.

6. The defendants controverted the entire claim and prayed for dismissal of the suit in its entirety. Their version of the occurrence is that on the fateful day at about 11 a. m., defendant No. 2, Dr. Devinder Kumar, along with one Shri Dev Raj were going on Grand Trunk Road from Jullundur City towards Amritsar in the car in question. A cyclist was going on a bicycle in the same direction and, as usual, before overtaking the cyclist, defendant No. 2 slowed down the car and used his horn repeatedly, but the cyclist did not pay any heed to the signals and also showed no indication of turning to any side; the cyclist pedalled on at the same pace, but at the time when defendant No. 2 tried to overtake him from his right hand side, be again used the horn, but the cyclist however suddenly turned to the right in a puzzled state of absent-mindedness without giving any signal.

The cycle thereupon struck the car On the left side near the left front wheel. Defendant No. 2 thereupon immediately applied the brakes and took other possible precaution to save the deceased. The car, according to written statement, was going at the speed of 15 miles per hour. By this collision, the right pedal of the cycle struck the mudguard of the car causing thereby a tear. Due to collision, the right ankle of the deceased also appeared to have been injured, which, according to the written statement, was perhaps due to impact with the mudguard of the car on one side and of the cycle on the other.

The cyclist fell down on the pucca road and the injuries on his person with the exception of the injury to the right ankle, were caused by the fall on the road from his bicycle on his left side. The cycle was admitted to have bumped on the car and scratched the bonnet; it also broke the windscreen glass and struck the front edge of the roof and thereby caused a dent there.

It was denied that defendant No. 2 was guilty of any rash, and negligent act of driving and it was asserted that the accident was the result of the negligence of the deceased, who suddenly swerved and darted towards his right in a fit of absent-mindedness. The negligent, wrongful and mistaken act of the deceased was the cause of the accident All other facts were denied, and. Curiously enough, to reply to the allegation that defendant No. 2 had recently taken his driving licence on 6th February, 1957, it was stated that defendant No. 2 did not remember the exact date of the issue of his driving licence.

7. On the pleadings, the trial Court framed the following issues:-

(1) Whether the accident, which eventually resulted in the death of Shri Om Dutta, was caused because of the rash and negligent driving of the car by Shri Devinder Kumar defendant No. 2?

(2) Whether Dr. Ram Saran, owner of the car involved in the accident is liable to pay the damages claimed because of his ownership of the car?

(3) Whether the car involved in the accident was insured with the Company defendant No. 3 at the time when the accident was caused and under the terms of the insurance policy or otherwise defendant No. 3 is liable to pay the damages claimed in this case?

(4) Whether the plaintiffs are entitled to claim recovery of the damages under the Fatal Accidents Act?

(5) Whether and if so what amount the plaintiffs or any one or more of them are entitled to recover, jointly or severally from the defendants or any one or more of them jointly or separately, as damages.

After considering evidence and the circumstances of the case, the Court came to the conclusion that the speed limit at the place of the accident was restricted by law to 15 miles per hour and that in spite at such a restriction, defendant No. 2 was driving his car at a high speed, with the result that he was not able to control it. The assertion by the defendant that the car had stopped immediately after the accident was negatived.

On this premise, the Court came to the conclusion that the defendant was driving the car in question rashly and negligently. It was thus founded that the accident, which resulted in the death of Shri Om Dutt, was caused by die rash and negligent driving of the car in question by defendant No. 2, Dr. Devinder Kumar. On issue No. 2 the Court found that Dr. Devinder Kumar had obtained his driving licence only about two months prior to the occurrence and that he had taken the car, which belonged to his father, defendant No. 1, with the latter's permission.

It was thus found that defendant No. 1 was in a position to control the car, with the result that he would also be liable for the damages arising out of the incident, in which the car belonging to defendant No. 1 was involved. Issue No. 3 was not pressed and the Court even on the merits came to the conclusion that the company is liable to pay the damages in the present case. Issue No. 4 was also decided in favour of the plaintiffs and, indeed, on behalf of the defence it was conceded that under the circumstances alleged by the plaintiffs fa the case in hand, damages could be claimed under the Fatal Accidents Act. (Under issue No. 5, die decree for a sum of Rs. 48050/32 Naye Paise with proportionate costs was granted to the plaintiffs against defendants Nos. 1, 2 and 3; the liability of the defendants being both joint and several. As a matter of fact, the joint and several liability of the defendants was conceded by the learned counsel for the defendants in the Court below.

8. Feeling aggrieved, all the three defenants have brought this appeal and their counsel has after taking us through the relevant evidence, addressed us extensively in his criticism of the im-pugned judgment. The first point on which the lower Court's judgment is assailed relates to the question of the negligence of Doctor Devinder Kumar, who was admittedly driving the car at the time of the accident. The broad argument stressed is that the onus of proving rash and negligent conduct of the driver lay on the plaintiffs and that they have failed to discharge the same and establish conclusively that the accident was due to the exclusive negligence of Doctor Devinder Kumar. (His Lordship after perusing the evidence proceeded)

9. In the present case, however, looking at the injuries to the person of the deceased and the nature of the damage done to the car, it seems to me to be perfectly safe to agree with the conclusions of the trial Court. The evidence of Jodh Singh, P. W. 18, Motor Vehicle Inspector, informs us about the damage to the car. He found the following damage and scratches:

(1) Near side head lamp glass broken.

(2) Near side head lamp ring and body near head lamp damaged.

(3) Side light glass broken.

(4) Wind shield glass broken into pieces.

(5) Bonnet cover on front towards near side dented and scratched on some places.

(6) Near side body roof dented and scratched.

(7) Wiper blades both missing.

(8) Wind shield frame damaged.

(9) Near side head light shade damaged and fell down.

10. Near side front parts of front mudgards damaged and scratched.

This witness also tested the Car on road and found the foot-brake, hand-brake and the electric born in order.

10-11. (His Lordship considered the defence evidence and proceeded:)

12. Now, considering all the relevant facts and circumstances surrounding the accident, mentioned above, including the admitted fact that Doctor Devinder Kumar had taken his driving licence only on 6th February, 1957, in my view, the nature and extent of the injuries to the deceased constitute prima facie proof of very high speed of the car at the relevant time and of the motor driver's negligence; the evidence adduced by the defendant does not establish any cogent or reasonable explanation overcoming this prima facie proof.

The facts established on the record speak for themselves and clearly warrant and furnish sufficient evidence of negligence on the part of Devinder Kumar, defendant, who has offered no cogent proof in justification of exceeding the Prescribed limit at the relevant time. The doctrine of res ipsa loquitur is thus, in my opinion, fully attracted, the established facts of the present record, and negligence on the Part of the defendant appears to be fairly established.

13. On behalf of the appellant, reference was made to certain observations contained at Pages 399 and 397 of 'Clerk and Lindsell on Torts' (Eleventh Edition), where it is stated that --

'..... A person run over cannot recover unless the person in charge of the vehicle was guilty of negligence in its management.'

The principle is unexceptionable but in the case in hand, as just noticed, there is cogent and also intrinsic material from which the defendant's negligence can easily be concluded.

14. It may, however, not be forgotten that no case is exactly like another, nor is it possible to extract from decided cases any precise principle of law on this point. The question of negligence in the present case is, as it is in all cases, essentially one of fact, and ft must not be confused by importing into it, as principle of law, the reasoning applied in other Cases for determining the issue of negligence on other sets of facts. The circumstances of each case are almost always peculiar and unique, with the result that the conclusion in one case can hardly constitute a safe or helpful illuminating guide for another,

15. But then the appellant's counsel has contended that even if the car was going at a high speed, the deceased cyclist should have taken care and should have avoided crossing the road without first looking round. His failure to do so, according to the counsel, establishes contributory negligence and, therefore, the Plaintiffs, so proceeds the argument, are disentitled to claim damages. This contention is not easy to sustain on the established and proved facts and circumstances of this case.

Indeed, the plea of contributory negligence was not specifically taken in the pleadings and was not sought to be put into issue; even in the memorandum of appeal, in this Court, this Precise ground has not been taken. The defendants' plea has been that defendant No. 2 was only going an the speed of 15 miles per hour and that he toot every possible precaution to save the deceased, who himself brought about the accident by his own wrongful, negligent and mistaken act. This plea, the defendants have completely failed to substantiate.

16. This brings me to the question of quantum of damages. Here, I have to notice the following passage at page 98, bottom, of 'Clerk and Lindsell on Torts', on which the counsel for the appellant has placed reliance-:

'The basis of the action is the Pecuniary loss suffered by the defendants in consequence of the deceased's death. Nothing may be given by way of solatium. If no pecuniary loss is proved the defendant is entitled to succeed. But it is not essential that there should be distinct evidence of pecuniary advantage actually derived from the deceased prior to his death. Prospective loss may be taken into account, but it must be the loss of a 'reasonable expectation of pecuniary advantage', not a 'mere speculative possibility' .......'

This passage, undoubtedly, lays down the correct legal position, but I fail to understand how it advances the case of the appellant. At page 99 of the above book, there is a quotation from the judgment of Lord Wright, in Davies v. Powell Duffryn Associated Collieries, Ltd., 1942 AC 601, that --

'It is a hard matter of Pounds, shillings and pence, subject to the element of reasonable future probabilities. The starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may dependupon the regularity of his employment. Then there is an estimate of how much was required or expended for his own Personal and living expenses. The balance will give a datum of basic figure which will generally be turned into a lump sum by taking a certain number of years' purchase. That sum, however, has to be taxed down by having due regard to uncertainties, for instance, that the widow might have again married and thus ceased to be dependent, and other like mutters of speculation and doubt.'

Considering the present Case in the light of what has been stated above, the appellant has contended that oh the question of expectancy of the deceased in view of the fact that he was 42 years old, the Court below should have fixed the period of expectancy at 10 years instead of 15. In support of his contention, he has attempted to seek assistance from Dinbai R. Wadia v. Farukh Mobedjna, AIR 1958 Bom 218, a Single Bench decision by S. T. Desai, J.

In that case, the deceased was 32 years oldand although the learned Judge was inclined, inview of the sober habits and good constitution ofthe deceased, to consider his normal expectation oflife to be 60 years, he took a more conservativeview and fixed it at 53 years. This decision doesnot, as the facts disclose, support the contention advanced before us. The next decision relied upon isMt. Manjulagoari v. Gowardhandas HarjiwandasRaval, (S) AIR 1956 Nag 86, in which case theCourt confirmed the trial Court's conclusion in fixing the expectation of life of the deceased at 45years.

It may be mentioned that the deceased was 30 years of age, when he was murdered in 1954. The judgment, however, does not contain any illuminating reasoning which could serve as a helpful guide; the only discussion being that the appellant had not succeeded in establishing that the trial Judge had been in error in determining the expectation of the life of the deceased to the age of 45. Reference at the Bar has also been made to Vanguard Fire and General Insurance Co. Ltd. v. Sarla Devi. AIR 1959 Punj 297, where a Division Bench of this Court, after quoting a passage from the judgment of Lord Wright in Davies' case, 1942 AC 601 observed --

'There is obviously no yardstick by which the number of years' Purchase can be measured....' After making a reference to Bir Singh v. Sm. Hashi Rashi Banerjee, AIR 1956 Cal 555, the Court considered the circumstances of the deceased in the case before it, who was 29 years old at the time of his death, and, capitalised his income at 16 years' purchase and fixed the damages on that basis. This judgment again does not afford any helpful guide in this matter. On behalf of the respondents also, our attention has been invited to a Bench decision of this Court in Municipal Corporation Delhi v. Sobhag Wanti, (1960) 62 Pun LR 362 : (AIR 1960 Punj 300).

There, Tek Chand's wife, who had died of the accident, was 40 or 42 years old at the time of her death and a period of 15 years was considered to be a fair period for computing the damages. It is true that in the case of Ram Prakash deceased also a period of 15 years was fixed 'for the purpose of capitalising the income in view of all the circumstances of the case, though, he was 30 years old at the time of the accident, but, as already noticed, in the other case, the same Period was fixed for determining the damages in case of Tek Chand's wife who was 40 or 42 years old. In our opinion, on the facts and circumstances of the Case in hand, the conclusion of the Court below that Shri Om Dutt deceased would have lived for 15 years more has not been shown by the appellant to be, in any way, erroneous, so as to justify interference by us on appeal.

17. In so far as the income of the deceased is concerned, there is no controversy before us as the finding on this part of the case, as given by the Court below, has not been assailed. The total Pay of the deceased for the period of 15 years has been determined by the trial Court to be Rs. 79,038/-. Out of this income, of course, the expenses, which would have been incurred on the deceased himself, have to be deducted. Similarly, allowance has also to be made for the payment in lump sum of the amount, which would have been spread over a Period of 15 years, if deceased had lived. The amount of Provident Fund deducted from the salary may similarly be deducted, and, indeed, the Court below has determined the sum of Rs. 3,960/-, which is liable to be deducted on account of the Provident Fund contributions. There is, in fact, no dispute before us in respect of this figure.

18. A sum of Rs. 6,676/- has also been added by the lower Court on account of the Provident Fund. According to the trial Court, Rs. 11,217/-would have been Paid to the deceased on this account on 24th April, 1972, if he had died on that date. The Savings Certificates of the value of Rs. 6,676/- would, after 12 years, become worth Rs. 10,014/- and if put in fixed deposit at the rate of 4 per cent per annum interest, this amount would at the expiry of three years swell up to Rs. 11,217/-.

By this process, the Court below determined the present value of the Provident Fund to be Rs. 6,676/-. In so far as the figure is concerned, on behalf of the appellant, there has been no serious attack. It has, however, been pointed out that the widow and the children of the deceased cannot get any pecuniary benefit from the Provident Fund and that the Court below is in error in adding this item to the decretal amount. Reference has in this connection been made to Section 1A of the Fatal Accidents Act.

19. As at present advised, I am hesitant in acceding to this contention, on the facts and circumstances f the present case. In the first place this precise objection does not find place in the memorandum of appeal filed in this Court; nor does it seem to have been pressed in the Court below. Consequently, it is not easy to spell out an unequivocal support for this contention from the language of Section 1A. It is true that damages are awardable only to the extent that the 'plaintiffs have suffered pecuniary loss, but, in 'my opinion, this may legitimately include reasonable expectation of pecuniary benefit in the future.

It is not shown by any convincing argument as to how the plaintiffs are, in law, debarred from getting pecuniary benefit from the Provident Fund payable in April, 1972, when the children are now only 7 and 11 years of age. I am, therefore, inclined, as at present advised, to hold that this amount was correctly allowed by the Court below; it may also be lair to add this amount in view of the deductions already made with respect to the contribution to the Provident Fund.

20. On behalf of the appellant, it is next contended that the daughter, who was 11 years old at the time 6f her father's death, cannot expect maintenance after attaining the age of 18 years. I am exceedingly doubtful about the soundness of this contention and, indeed, I have not been able to understand why the expectation of pecuniary benefit by a daughter on attaining 18 years should abruptly come to an end. No precedent or principle has been brought to our notice by the counsel. The argument also ignores the fact that in our society when the daughter gets to marriageable age, the father is expected to perform her marriage according to the standard befitting the social status of the family, and, till her marriage the expectation of pecuniary benefit is reasonable and Can hardly be denied on any Practical consideration.

21. In so far as the cost of cycle repairs is concerned, in ray view, the counsel is right in maintaining that there is no reliable evidence in support of this item. But then this is a paltry sum of Rs. 5/- only.

22. The appellant has also questioned the item of Rs. 369/32 nP. which represents the difference between Rs. 1,073/32 nP, the Provident Fund of the deceased at the time of his death, and the amount actually paid, on account of his death within a short period of his appointment, which deduction appears to be in accordance with the rules. It is argued that this is not a pecuniary loss to the plaintiff. I again find it difficult to agree. If this amount would have been added to the Provident Fund, had the deceased not died, as he has, then, obviously, this would be Pecuniary loss just like the Provident Fund discussed above.

23. In the Court below, adjustment was also made with respect to Rs. 1,000/- ordered to be paid by the criminal Court to plaintiff No. 1 by way of compensation. Nothing has been urged at the Bar against this adjustment, which must, therefore, be upheld.

24. This brings me to the deduction on account of the amount, which would have been required or expended for his own personal use and living expenses by the deceased; for compensation Payable to the plaintiff is not to be assessed on the estimated gross income of the deceased, but on the amount lost by the claimant; to determine this what the deceased would have spent on himself, in other words, the estimated amount of his maintenance, has necessarily to be deducted.

It is perfectly correct that it is not always easy to determine such amount with arithmetical accuracy or scientific precision and the figure has to be arrived at on broad and practical considerations on the facts and circumstances of each case. In making such estimates, one cannot be dogmatic and at best, it is a quasi-scientific test; certain amount of guesswork is, from its very nature, involved in the Process as various factors have to be kept in view, which cannot be expressed arithmetically.

25. Now the Court below has considered one-fourth portion to be fair and just proportion on this account. The appellant has failed to show any convincing reason against this conclusion. It is firmly settled that the onus of showing the conclusions of the Court below to be wrong is on the appellant and this burden cannot be considered to be discharged merely by showing equal possibility of another conclusion. It is, therefore, not possible for me to hold that the Court below has been in error jn deducting one-fourth share.

26. After deducting one-fourth share of the emoluments of the deceased as also Rs. 3,960/- on account of Provident Fund contributions from Rs. 79,038/-, the Court below has arrived at the figure of Rs. 55,318/-; this arithmetical calculation has not been questioned before us at the Bar. Now, this amount was to be paid to the deceased during a period of 15 years. We have, therefore, to determine or estimate its present worth, because the plaintiffs are to be Paid this sum in lump sum long in advance, whereas in the normal course if the deceased had lived, it would have been spread over a period of 15 years.

At the Bar, no arithmetical or scientific formula has been brought to our notice for this purpose. I am, however, inclined to think that its present value might safely be fixed at Rs. 34,000/-. Adding to this, the amount of Provident Fund as also the loss of Rs. 369/- and deducting Rs. 1,000/-directed to be paid to plaintiff No. 1 by the criminal Court, I would, generally speaking, consider a round figure of Rs. 40,000/- to represent the fair amount of damages to be decreed.

27. I may at this stage, in passing, state that in fixing this amount, I have been influenced, to some extent (though this aspect was not urged before us at the Bar), by some possibility of addition to the number of family members, had the deceased lived longer, for in that case the present Plaintiffs' pecuniary loss would have been proportionately reduced.

28. For the reasons given above, this appeal is allowed in part and the decretal amount is reduced to Rs. 40,000/-. In the Peculiar circumstances of the case, we think there would be no order as to costs of this appeal.

Mahajan, J.

29. I agree.

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